ISSUES REGARDING THE EXERCISE OF THE RIGHT OF A SUSPECT OR DEFENDANT TO TRANSLATION IN CRIMINAL PROCEEDINGS IN UKRAINE

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The right to free interpretation, where the accused does not understand or speak the language used in court, is one of the specific elements of the right to a fair trial, which is guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The ECHR’s case law regarding the interpretation of paragraph 6 of Article 6 of the Convention emphasizes that free interpretation must be provided to the extent necessary to ensure a fair trial (Cuscani v. the United Kingdom, paras. 38–40). The judge is required to exercise due diligence in determining that the absence of an interpreter does not prevent the applicant from fully participating in matters of importance to him or her (“Cuscani”) [1, p. 164]. At the same time, this guarantee extends to pre-trial proceedings: Article 6 § 3 (e) applies … also to proceedings preceding the trial (Kamasinski v. Austria, § 74; Hermi v. Italy [GC], § 70) [2, p. 57].

At the same time, the Convention does not guarantee the translation—including written translation—of all proceedings materials, as recognized in the case law of the European Court of Human Rights: Article 6(3)(e) also covers the translation of certain materials, but not all relevant documentation; it concerns only the translation of documents and statements (such as the charges, the indictment, the testimony of key witnesses, etc.) that are necessary for the defendant to receive a fair trial (“Kamasinski”) [1, p. 165]; this provision does not require a written translation of every piece of documentary evidence or every official document in the case file (Kamasinski v. Austria, § 74). For example, the absence of a written translation of a court decision does not in itself constitute a violation of Article 6 § 3(e) (ibid., § 85). The original text of this provision refers to “oral interpretation (interprète),” not to “written translation (traducteur).” This suggests that assistance in the form of oral interpretation may satisfy the requirements of the Convention (Husain v. Italy (dec.); Hermi v. Italy [GC], § 70) [2, c. 57].

In accordance with Article 29 of the Code of Criminal Procedure of Ukraine, a person shall be informed of the suspicion that they have committed a criminal offense in the official language or in any other language in which they have sufficient proficiency to understand the nature of the suspicion of having committed a criminal offense. Judicial decisions by which the court concludes the trial on the merits shall be provided to the parties to the criminal proceedings or to the person regarding whom a decision has been made on the application of coercive measures of an educational or medical nature, as well as to the representative of the legal entity against which the proceedings are being conducted, translated into their native language or another language they are proficient in. The translation of other procedural documents in criminal proceedings, the provision of copies of which is provided for by this Code, shall be carried out only upon the request of the aforementioned persons.

As can be seen from the text of Article 29 of the Code of Criminal Procedure of Ukraine, translation is mandatory only for court decisions by which the court concludes the trial on the merits. In general, this does not contradict the Convention or the practice of the European Court of Human Rights (ECHR), since, as noted above, the Convention does not guarantee the translation—particularly in writing—of all materials in the proceedings. At the same time, such a formalized approach to the list of materials that must be translated does not take into account the criterion applied by the ECHR in its case law, namely: the defendant’s need for a fair trial. From this perspective, the absence of the following documents from the list raises questions: a notice of suspicion (even though the person is notified of the suspicion in any other language they are sufficiently proficient in to understand the essence of the suspicion of having committed a criminal offense); a motion to impose, change, or extend a pretrial measure; a ruling on the application of a pretrial measure; and an indictment. These documents may also be translated, however, only at the request of the defense, which is consistent with paragraph 18 of Part 3 of Article 42 of the Criminal Procedure Code of Ukraine, according to which a suspect has the right to receive copies of procedural documents in their native language or another language they are proficient in.

At the same time, the absence of a provision requiring mandatory translation clearly complicates the situation for a suspect who does not speak Ukrainian. After all, even though the participation of a defense attorney is mandatory, the attorney may not speak the language spoken by the suspect; in such a case, the participation of an interpreter must be ensured. In situations where a written translation is not available—pending its provision upon a formal request—the interpreter must provide simultaneous oral interpretation of the communication between the defense attorney and the suspect, including, if necessary, regarding the notification of suspicion, its content, and the circumstances set forth therein, given that the suspect may simply fail to remember its content or may not understand it at the time of notification due to the vulnerability of their position resulting from their lack of proficiency in the language of the criminal proceedings. In other words, there will effectively be an oral translation of the notice of suspicion and a return translation of the suspect’s position regarding it, even though the suspect receives the relevant information only “by ear.” The right to defend oneself personally appears to include the ability to review the facts alleged against the individual in writing, which is particularly important when a pretrial detention measure is imposed on the suspect. From an organizational standpoint, this undoubtedly complicates the right to defense, including in terms of preparing the defense during the consideration of a motion to impose or modify a preventive measure, and in terms of the increased time required for communication by the defense. Therefore, it appears that the notice of suspicion must be translated in writing without any motion from the defense, and the translation must be served on the suspect without delay.

The right to a defense becomes even more compromised in the absence of a written translation of a motion to impose, modify, or extend a pretrial measure, given that the timeframes provided by the Code of Criminal Procedure of Ukraine for the defense to prepare in this situation are shortened: a copy of the motion and the materials justifying the need for a pretrial measure must be provided to the suspect or defendant no later than three hours before the hearing on the motion begins, and in practice, it is not always provided earlier. And during this time, assuming an interpreter is already present, the interpreter must translate the motion and its attachments (which may consist of a volume or even multiple volumes) for the suspect and facilitate communication with the defense attorney to develop the defense’s legal position. Undoubtedly, this increases the time actually needed for the defense to prepare and calls into question the effectiveness of the defense—including the personal defense—under such conditions.

The Code of Criminal Procedure of Ukraine does not provide for an obligation on the part of the investigating judge to ensure, without a motion from the defense, the translation of a ruling on the imposition, modification, or extension of a preventive measure. This, in turn, complicates the defense, especially when the suspect is in custody and the personal presence of an interpreter is required to facilitate communication with the defense attorney. Given the deadlines for filing an appeal, the cumulative effect of these difficulties could potentially have a significant impact on the effectiveness of the defense.

Despite the importance of the indictment as a procedural decision through which the prosecutor brings charges for a criminal offense and which concludes the pretrial investigation, the Code of Criminal Procedure of Ukraine does not mandate its translation. Although it is precisely there that the charge is formulated—the validity of which will be examined by the court—and there is no doubt that its translation is necessary for the defendant to receive a fair trial.

Therefore, Article 29 of the CPC of Ukraine requires amendments that would mandate a written translation—even without a motion by the defense—of the notice of suspicion, motions to appoint, change, or revoke a defense counsel, as well as to impose additional obligations or extend the term of a pretrial measure; rulings by the investigating judge on the application of a pretrial measure or the extension of its term; and the indictment.

Attention should also be drawn to certain shortcomings in the wording of Part 4 of Article 376 of the Code of Criminal Procedure of Ukraine, which provides: if the defendant or a representative of a legal entity against which proceedings are being conducted does not speak the official language, then after the verdict is pronounced, an interpreter shall explain to them the content of the operative part of the court decision. A copy of the verdict in the defendant’s native language or another language he or she understands, in a translation certified by the interpreter, shall be provided to the defendant. First, by virtue of their status, an interpreter is not required to explain even part of the court decision, and explaining the content of the court decision, in accordance with Part 1 of Article 376 of the Code of Criminal Procedure of Ukraine, is the duty of the presiding judge. Second, Part 4 of Article 376 of the Code of Criminal Procedure of Ukraine does not specify a time limit within which a copy of the judgment must be served, which is illogical given the time limits for filing an appeal. Therefore, Part 4 of Article 376 of the Code of Criminal Procedure of Ukraine should be clarified to address these observations.

Thus, to ensure the fuller realization of the right of a suspect or defendant to a translation in criminal proceedings in Ukraine, the following should be done: Part 4 of Article 29 of the Criminal Procedure Code of Ukraine should be amended to include a provision requiring that a written translation of the notice of suspicion be served, motions for the imposition, modification, including revocation, modification, or imposition of additional obligations, and extension of the term of a preventive measure; rulings by the investigating judge on the application of a preventive measure; including the revocation, modification, or imposition of additional obligations, the extension of the term of a preventive measure, as well as the indictment; Part 4 of Article 376 of the Code of Criminal Procedure of Ukraine should be amended to establish the interpreter’s obligation to translate the operative part of the court decision and to specify the deadline for serving a copy of the judgment in the defendant’s native language or another language he or she understands.

Bibliography:

1. Vitkauskas, D., & Dikov, G. Protection of the Right to a Fair Trial under the European Convention on Human Rights (2nd ed.). Council of Europe, 2nd ed. (Ukrainian version), February 2018. 189 pp.

2. Handbook on the Application of Article 6 of the Convention—The Right to a Fair Trial (Criminal Procedure Aspect). 2014. 72 pp. URL: https://www.echr.coe.int/Documents/Guide_Art_6_criminal_UKR.pdf p. 57